Equal Employment Opportunity - Dissertation Example

 Equal Employment Opportunity Introduction The Federal Equal Opportunities legislation includes several Acts that determine and enforce fairness in the workplace. Those acts include the Civil Rights Act of 1866 and 1871, Equal Pay Act of 1963, Civil Rights Act of 1964 (Title VI) and (Title VII), Executive Order 11246, Education Amendments of 1972, Rehabilitation Act of 1973, Vietnam Era Veterans Readjustment Act of 1974, Age Discrimination Act of 1974, Civil Right Restoration Act of 1987, The ADA, and the Civil Rights Act of 1991. An explanation of the American Disabilities Act (ADA), Executive Order 11246, and the Age Discrimination Act of 1974 will be provided. This paper will then tie the three into a final discussion of how the three have impacted the work place. American Disabilities Act The primary reason for the American Disabilities Act was to insure that discrimination against people with disabilities did not occur in employment, transportation, public accommodations, communications, and governmental activities. There are four Federal agencies that have a hand in the enforcement of the ADA. Those are the Equal Opportunity Commission (EEOC), The Department of Transportation, The Federal Communications Commission (FCC), and the Department of Justice. There have in fact, been many cases related to the ADA and this paper will review a few of those here in an attempt to thoroughly understand the intent of ADA. January 1, 2009 brought new changes to the ADA. These changes came without surprise to most because the original definition of a disability was made in such a way as to make it very difficult to meet the definition. Congress passed the ADA “to carry out the ADA’s objectives in providing a clear and comprehensive national mandate for the elimination of discriminations based on disability.” (Jan, 2009). However, if you cannot meet the definition, how can you eliminate discrimination? The new definition has three parts. It defines a disability as a physical or mental impairment that substantially limits one or more major life abilities of an individual, a record of such an impairment or being regarded as having such an impairment. In other words, they did not change the definition but some of the meanings of the words in the definition. The term “substantially limited” is one of the terms that have changed. The standard has been reduced and it should be easier to reach. Mitigating measures will continue to not be considered with the exception of the use of glasses or contact lenses when they substantially decrease the ability to do a job because of them. The positive effects of a mitigating measure are not considered. An example would be the person who has seizures and is on medication. The medication controls the seizures but they can be considered disabled because of what it would be like without the medication. There is also an expansion in the term major life activity Settlement Agreement Atlanta Georgia This was a compliance review of the city of Atlanta. It was conducted by The Disability Rights Section of the Department of Civil Rights Division and focused on the Title II requirements. The requirements that were audited were many and include self evaluation of services, notification of applicants, Designation of efforts to comply, delivery of services and physical changes to Buildings. They also did a full program access review. There were many remedial actions requested from the government. Some of those included providing copies of remedial actions to the public, providing copies of grievance procedure to the public, making telephone and entrance access more readily available to those with disabilities, change in employment policies, emergency management procedures and policies and many others. On the average they were to have remedial actions completed in 3 months time. That included changes like sidewalks and doors and victims of violence procedures just to name a few. The remedial actions section was 14 pages long and the expectation was that they would receive another compliance review in 6 months and then one year This agreement was signed into effect on December 8, 2009. (Atlanta, 2009) Settlement Agreement Poplaville, Mississippi This was a compliance review of the City of Poplaville, Mississippi under title II of the Americans with Disabilities Act. It was conducted under the authority of the Rehabilitation Act of 1973. Again, the compliance review was done by the Disability Rights Section of Departments Civil Rights Division. It covered the same issues as the prior review. The remedial actions were very similar with the exception that in this case police and emergency areas were included as well as polling places. The city was given 2 months to fix these issues which were lack of access for those with disabilities. This, of course included the need to build access doors as well as sidewalks. This agreement was signed into effect on November 25th 2009. They will be reviewed again in 6 months and 1 year. Low Vision- An interesting debate that is taking place on the ADA is the question of whether or not it is an infringement on someone’s rights to take away their ability to drive if they have issues with vision. In today’s world, if you cannot drive a car it limits your ability to work, go to a physician, and many other things. So, at what point do we consider vision a public safety issue and when is it an infringement on ones rights? This debate is actually going on right now in more than one state. Presently you can drive in the State of California if your vision is corrected to 20/200 with glasses or in Maryland and Minnesota (Marta & Geruschat, 2004). There is much study going on at this point to determine where we are correct in our limits to driving with visual problems. There will need to be better collaboration between states at this point too. At this point you can drive in a state that requires high visual acuity with a license from a state that does not. This is already leading to many courtroom problems. The ADA states they will not get involved n this debate unless it affects employment ability but we may soon see that it, in fact does. Executive Order 11246 This order protects all people from discrimination because of sex, color, race, religion and national origin when working for anyone who contracted by or subcontracted by the Federal government. It is enforced by the Department of Labors office of Federal Contract Compliance Program (OFCCP). This regulation applies to all contractors that have 50 or more employees and government contracts of $50,000 or more. They must, as part of this have a written affirmative action plan on record. If underutilization occurs, they may come up for review. Underutilization is defined as having fewer minorities or women than would reasonably bee expected. These numerical goals are established based on the availability of qualified applicants in the job market or those in the contractor’s work force. It includes assurance that recruiting will include women and minorities when it comes to jobs and that advancements will not be held from these groups. It includes all what is considered positive steps. Those things would consist of training programs and outreach programs (ebscohost.com) Employees who feel they have been discriminated against can file a Federal complaint under this executive order. The complaint must be filed within 180 days of the discrimination. The violation is then investigated through a compliance review. If the review shows that the action did occur, the contractor is placed in conciliation negotiations. If that fails, a Federal complaint is served to the contractor. The contractor then has 20 days to have a review by an administrative law judge. He will then receive one appeal. The results of loss can be withholding of contract, canceling of contracts or payment withholding. There are many cases pending in the courts right now. This is a powerful statute that covers many people and unless management personnel are well trained, it can be easily misused. Age Discrimination Act 1974 This act, at present, is even more important than it was in 1974. Today there are many people who could be considered elderly, in the work place and with economy in the shape it presently is in, that may increase. There are also, considerably large numbers of corporate downsizing happening. That need to have a Reduction in Force is likely to precipitate more Age Discrimination cases. Companies will try to eliminate expensive but non-essential positions and those positions are likely held by long time employees that have accumulated higher benefits and wages than the newer people hired (Pesta, B. 2009). By law, however, this decision cannot be based on age, nor can it cause an impact to that population in any business. There are already many cases on the books here. We will use a few as example, to better understand the law. In this case employers have to be very proactive. It is quite easy to say that an older employee that is at the top of salary scale is not doing their job but we need to assure that we are truly looking at the facts. Has the employee been with your corporation for 25 years because his evaluations show that he is a wonderful employee then why all of a sudden do you need to relieve yourself of a wonderful employee? Is he outdated but you kept him on anyway? If you did not show that prior to the reduction, you had better be careful. The other thing that must be monitored closely is the pay for performance policies that are set up. Are you setting it up in such as way that only younger employees can reach the goal? As people who are looking for work age, it becomes more and more difficult to find a job. Though we have these laws think about the person who has 35 years experience. They show that on their resume because they are supposed to tell the truth and because they need good experience for the job. One look at the resume and they are not interviewed. Oops, why not? Many people are altering their resumes and then showing up for the interview (Berger, E., 2009). Other things that are documented go so far as to alter their beliefs about employment and the way they look, all in an attempt to hide their age. Employer education is important here. There is the right to work. Gomez-Perez v. Potter (2008) “Gomez-Perez was a 45 year old window clerk for the U.S. Postal Service. After she was denied a requested transfer, she filed a complaint with USPS stating that she was discriminated against based on age. She then further filed that she was retaliated against because she filed suit. The employer won the suit and Gomez appealed.”(Hesse & Ehrens, 2009). The determination was based on there not being a precedent set as to the affects of retaliation from an employer in this kind of case. Gomez then won her appeal with the Supreme Court and the precedent was then set for disallowance of retaliation from an employer when served with a discrimination suit based on age. Kentucky Retirement Systems v EEOC-2008 In this case, the plan was found to violate the age discrimination laws of the EEOC. The question before the court was really quite interesting. “Kentucky’s plan makes age a condition of pension eligibility and treats workers differently based on that eligibility.” (Hesse & Ehrens, 2009). The question before the court was “does the plan then automatically discriminate because of age?” The case that initiated this filing was filed by Charles Lickteig who was a disabled and retired employee that retired at the age of 61. At that time he had 18 years of service in with the company. He had no imputed years added to his retirement because he became disabled after the age of 55. He felt this was discrimination because if he had become disabled before the age of 55, years would be found. Mr. Lickteig lost his case. The court felt that the employee must prove that it was age alone that changed the calculations. There was actually another factor involved. The calculations were actually made on the disability and not the age. Work Place Change Each of these regulations has changed the workplace greatly. It has not been long ago when people were paid less because of their color or sex or maybe did not get the job at all. Even in the 1980’s people were often fired because of some discriminatory reason. It was not unusual to have someone suddenly fired because of who knew why only to find out that person had been with the company 30 years and suddenly there was a young person arrive that could do the job for much less. The only protection that most people had was the union and if you were not a member of the union, there was actually no protection for you. It might be found today though that there is still some discrimination going on under the vise of hiring for the right culture for an organization. This is a fairly new hiring policy which when used for the best result for everyone is a good thing but can be used incorrectly and shadow hiring practices that are discriminatory. In general the OFCCP programs have benefited real people, not just contractors. It has helped women break through what is called the glass ceiling. In 1970, only 10% of women worked for fortune 500 companies, now in some cases, they are leading them. Many minorities and women have access to working for large construction firms that they could not work for before. This brought many women from welfare to working in construction doing many things including equipment like forklifts. It is not unusual to see Native Americans working on highway projects. There are many handicapped people or people with disabilities working in many companies throughout the country. With all of this happening, there is much training happening all over the country to continue to change the workplace through affirmative action. The employers have been impacted drastically by all three of the aforementioned practice changes. It has determined a system in which employers must be proactive in keeping up with and making changes that relate to any new regulations or changes. They need to review all new regulations each year before making policy changes and they need to be very proactive when it comes to reduction in force decisions because it is very easy to step over the line and create a situation that is discriminatory to one group or another. Personnel training have become hugely important. Interview skills and cultural skills are extremely necessary for all management staff. They must also understand the need to continuously keep track of changes in personnel work habits and evaluate fairly but realistically. In the event one ever has to prove that there are issues that create a need to fire an employee documentation is the key. Most of the improvements in the work force can be best described through the following volunteered examples. Janice became an astronaut with NASA. She has now logged over 438 hours in space. She describes this as the change in NASA’s diversity policies and the fact that she would not have been able to do this before. Paulette is now an officer of the NYNEX and does everything she can to pursue affirmative action policies in the business world (OFCCP, 2009). Lisa previously worked without benefits for $5.00 as a seamstress and now works in the construction industry for over $20 an hour. These are only a few examples of great changes. There are however, examples of things that are still a problem and the need to continue to pursue companies that have not or will not meet their obligation to fair employment. Complaint: A hostile work environment at an aircraft maintenance facility, including insulting graffiti on the bathroom walls and offensive drawing throughout the work place. Complaint: Black professionals are expected to scrub the toilets at their work place. Complaint: A Native American amputee was physically assaulted and beaten and then denied any benefits at his work place. As you can see, there are still grave issues to be solved and certainly a reason for the Federal government to continue to pursue these issues. There are also grave reasons for employers to stay on their toes as to discriminatory practices of their employees as well as themselves. Needed Employer Response Training frontline Supervisors If frontline supervisors and managers are not trained, there will be no reason to prepare in any other way. One of the things that needs to be provided in this training is how not to mentor a medical condition unless it is maintained as a disability and requires the company to provide an accommodation. Most managers and supervisor are weak here and it causes difficulty later when proof is needed that everyone has been treated fairly. Once a disability has been established, there should be someone in the company that handles those issues. Effective communication with employees is one of the most important parts of a supervisor or manager training that is available. How to document and those communications with employees and needs to be included in that training. Many issues later could be avoided if the level of communication is improved between employee and supervisor. Many suits are a result of poor communication. Last but not least Diversity training first with managers and supervisors is very important and then with employees throughout the organization. Diversity is not always a bad thing or something to be afraid of. Diversity is treated correctly and taught throughout the organization can actually leverage its use in such a way as to assure improvements in relationships and profit for the company. Conclusion The Federal Equal Employment Opportunity Legislation was a long time coming. There was much discrimination in many ways in the work place prior to its enactment. Many deserving employees have gained from this legislation over the years. It has, however, caused difficulty for employers themselves. Most of that difficulty comes from thorough understanding of the process needed to change the policies throughout their organizations. Education is a key aspect of all the changes that need to be made. It does not good to change policies and procedures but not to educate supervisors and manager to do their jobs differently. It is a different work word today than it was 30 years ago and supervisor and managers must know how to change to meet the new challenges. One of those challenges certainly is diversity in the work place and fair employment practice. References Berger, E. (2009). Managing age discrimination: An examination of the techniques Used when seeking employment. The Gerontologist. Washington.: Jun 2009. Vol. 49, Iss 3; pg 317-33. Fulton, T. Mallozzi, M.(2005). Settlement Agreement Between The United States of America and Atlanta, Georgia. Disability Rights Section-NYA Civil Rights Division, Washington, DC. Hesse, K., Ehrens, D., (2009). Discrimmination-age-ADEA-retaliztion. Benefits Quarterly. Brookfield. Second Quarter. Vol. 25, Iss. 2; pg. 59-61. Hesse, K., Ehrens, D., (2009). Pension eligibility based on age-ADEA-age discrimination Disparate treatment-public retirement system. Benefits Quarterly. Brookfield: Second Quarter. Vol. 25. Iss 2; pg 57-59. JAN Bulletin, December 2009 Accommodation and Compliance Series. Pgs 1-9. Marta, M., & Geruschat, D. (2004). Equal protection, the ADA, and riving with low vision: A legal Analysis. Journal of Visual Impairment and Blindness. Pgs 655- 670 Perez, T., Wodatch, J, Worden, J., (2009) Disability Rights Section-NYA- Civil Rights Division. Washington, D.C. Pesta, B., Revisiting disparate impact claims under the ADEA; A brief review and Statistical primer. Labor Law Journal. Riverwoods: Summer, Vol. 60, Iss. 2: Pg 104-111. Read More